When are you on your deathbed?

What exactly is a ‘deathbed’?  That was the question for the Court of Appeal when it was asked to rule on whether or not an elderly lady had made a gift of her house to her nephew.

The case of King v Dubrey and others concerned the rather obscure legal doctrine of donatia mortis causa – which means ‘gift in contemplation of death.  In other words, a ‘deathbed gift’.

There are three conditions for a valid donatia mortis causa:

1. The gift must be conditional on death – i.e. the donor can revoke it at any time before they die;
2. The gift must be made by a person who is contemplating death – i.e. they are almost literally on their deathbed; and
3. The donor must part with dominion over the gift.  How this happens depends on what the gift is.  In this case the gift in question was land.  In order to part with dominion over land, the donor must hand over the title deeds.

In this case, June Fairbrother had given the deeds to her property to her nephew Kenneth King, who was living with her and providing care to her, saying “this will be yours when I go”.  He had then put the deeds in his wardrobe.  His aunt died five months later.

She made various attempts to make a Will in his favour but none of them were legally valid.  The £350,000 property was the main asset in her estate and Kenneth’s claim to it was challenged by various animal charities who were the beneficiaries of the only valid Will.

The case was first heard by the High Court where the charities made a number of arguments:

1. Kenneth’s evidence was not to be trusted.  He had been bankrupt twice and had been jailed for acting as a company director while disqualified.  However, on balance, the High Court judge concluded that Kenneth’s evidence in relation to the gift itself was consistent and was corroborated by the various failed Wills.
2. Mrs Fairbrother lacked mental capacity to make a donatia mortis causa.  The judge noted that there was no medical evidence before him and, although there was some evidence of dementia and erratic behaviour, he could not conclude that she had lacked capacity.
3. The words used by Mrs Fairbrother were not sufficient to make a donatia mortis causa.  The judge said they were sufficient, and that is that.
4. Mrs Fairbrother was not contemplating impending death.  The judge said it was not necessary for death to occur within a few days of the gift and a five month gap was not a bar to a claim.  Here, he noted that she had clearly been preoccupied by death, as evidenced by the various ‘Wills’.
5. Mrs Fairbrother did not part with dominion over the property.  It did not matter that June continued to live there.  Giving the deeds was enough and Kenneth had put them in his wardrobe, which was exclusively his.  As an aside, this case involved unregistered land – the courts have not yet told us whether it is possible to make a valid donation mortus causa of registered land.
6. The donation mortis causa was revoked by the failed Wills.  The judge rejected this argument as an ‘over-technical analysis of the parties’ intentions’.  Which is a pretty cunning way of dismissing a complicated legal argument.

The High Court concluded that there was a valid donatio mortis causa and the house validly passed to Kenneth.

In case he was wrong, the judge added that if there was no valid donatio mortis causa then Kenneth would be entitled to a hypothetical lump sum of £75,000 on the basis that he was financially dependent on the deceased.

However, two of the charities appealed the decision to the Court of Appeal in King v Chiltern Dog Rescue and another.

The Court of Appeal held that although Mrs Fairbrother had ‘parted dominion’ with the property by handing over the deeds to the unregistered property, the first two requirements of the donation mortis causa were not satisfied:

She had not been ‘contemplating death’ as she did not have a fatal illness and nor was she about to undergo a dangerous operation or make a dangerous journey.  In other words, she was not yet on her ‘deathbed’.

She had not made a gift conditional on death.  The words she used had been “this will be yours when I go”, which a statement intent to make a Will rather than a gift.  Indeed, this was evidenced by various Wills she had tried to make in her nephews favour, none of which satisfied the legal requirements.

The nephew also appealed the first instance finding of a ‘hypothetical’ lump sum payment of £75,000 as being inadequate.  He reckoned £150,000 would be more like it.  However, the Court of Appeal said that there were no grounds for overturning the original decision.